It was the settled doctrine of the common law that an occupant of land makes improvements thereon at his peril. The reason given for this harsh doctrine was one of policy, viz. that any other rule would encourage carelessness in the examination of titles. The result was that an occupant who made improvements in the honest but mistaken belief that he was the owner of the property could neither enforce restitution in value for the benefit conferred upon the real owner, in an affirmative action against such owner, nor require such restitution as a condition of his ejectment.1
1 Ford v. Holton, 1855, 5 Cal. 319, (ejectment); Westerfield v. Williams, 1877, 59 Ind. 221, (claim filed against estate; no recovery outside statutory provisions); Webster v. Stewart, 1858, 6 Iowa 401, (independent action for value; no recovery outside statutory provisions) ;
The courts of equity, applying the maxim that he who seeks equity must do equity, departed from the common law rule to the extent of holding that where the real owner of the property seeks the assistance of equity in the establishment of his rights, he will be compelled to make restitution for improvements made by a bona fide occupant.1 And in some cases it has been held that even if the bona fide occupant is ejected at law, he is entitled to affirmative relief in equity for the benefit conferred upon the owner by the improvements.2
Gregg v. Patterson, 1844, 9 Watts & Serg. (Pa.) 197, 209, (ejectment); Putnam v. Tyler, 1888, 117 Pa. St. 570,588; 12 Atl. 43, (ejectment). And see McDonald v. Rankin, 1909, 92 Ark. 173; 122 S. W. 88, 91; Parsons v. Moses, 1864, 16 Iowa 440.
1 Bright v. Boyd, 1841, 1 Story (U. S. C. C.) 478, 494; Fed. Cas., No. 1875; Gordon, Rankin & Co. v. Tweedy, 1883, 74 Ala. 232; 49 Am. Rep. 813; Ebelmesser v. Ebelmesser, 1881,99 111. 541; Wakefield v. Van Tassell, 1905, 218 111. 572; 75 N. E. 1058; Pugh v. Bell, 1825, 2 T. B. Mon. (18 Ky.) 125; 15 Am. Dec. 142; Jones v. Jones, 1846, 4 Gill (Md.) 87, 102; McLaughlin v. Barnum, 1869, 31 Md. 425, 453; Bacon v. Cottrell, 1868, 13 Minn. 194; Smith p. Drake, 1873, 23 N. J. Eq. 302; Putnam ». Ritchie, 1837, 6 Paige (N. Y. Ch.) 390; Thomas v. Evans, 1887, 105 N. Y. 601; 12 N. E. 571; 59 Am. Rep. 519, (action to vacate and annul a deed); Bomberger v. Turner, 1862, 13 Ohio St. 263; 82 Am. Dec. 438, (bill to set aside a sale of land as fraudulent against creditors); Skiles's Appeal, 1885, 110 Pa. St. 248; 20 Atl. 722, (bill to set aside gratuitous conveyance by an insolvent decedent); Van Zandt v. Brantley, 1897, 16 Tex. Civ. App. 420; 42 S. W. 617, (action to rescind a sale); Southall v. M'Keand, 1794, 1 Wash. (Va.) 336, 339; Williamson v. Jones, 1897, 43 W. Va. 562; 27 S. E. 411; 38 L. R. A. 694; 64 Am. St. Rep. 891. See Dellet v. Whitner, 1839, Cheves Eq. (S. C.) 213, 228.
2 Bright v. Boyd, 1841, 1 Story (U. S. C. C.) 478; Fed. Cas., No. 1, 875 (cf. 2 Story's " Equity Jurisprudence," Sec. 1238); Parker v. Stevens, 1820, 3 A. K. Marsh. (10 Ky.) 197, 202; Thomas v. Thomas' Extr. 1855, 16 B. Mon. (55 Ky.) 420; Quynn v. Staines, 1793, 3 Harr. & McH. (Md.) 128, (injunction to require purchaser to withhold purchase money sufficient to pay for improvements); Union Hall Ass'n v. Morrison, 1873, 39 Md. 281; Hatcher v. Briggs, 1876, 6 Or. 31, (cross bill in an action of ejectment). And see Valle's Heirs v. Fleming's Heirs, 1859, 29 Mo. 152; 77 Am. Dec. 557, (rule applied to an occupant whose purchase money has been applied in the extinguishment of a valid mortgage) ; Wilie v. Brooks, 1871, 3 Morris (45 Miss.) 542, 549, (occupants had brought owners into court on a bill to restrain an action at law on ground of estoppel).
Contra: Armstrong v. Ashley, 1907, 204 U. S. 272, 285; 27 S. Ct.
The courts of law, influenced probably by the attitude of equity, have slightly modified the old common law rule, and hold that where the real owner brings an action for mesne profits, the bona fide occupant may set off or recoup the value of his improvements to the extent of the rents and profits demanded.1 They still refuse, however, to give the occupant affirmative relief or even to make restitution a condition of ejectment.2
That the severe doctrine of the common law does not commend itself is evidenced by the fact that in most States statutes have been enacted securing to the bona fide occupant the value of improvements made by him and the amount of taxes paid by him, over and above the amount due for use andoccupation.1 The policy which led to these enactments is clearly stated in a case arising under the Connecticut statute:
270; Ellett v. Wade, 1872, 47 Ala. 456, 466; Anderson v. Reid, 1899, 14 App. D. C. 54; Williams v. Vanderbilt, 1893, 145 I11. 238; 34 N. E. 476; 21 L. R. A. 489; 36 Am. St. Rep. 486; Putnam v. Ritchie, 1837, 6 Paige (N. Y. Ch.) 390; Winthrop's Admrs. v. Huntington, 1828, 3 Ohio 327; 17 Am. Dec. 601; Fricke v. Safe Deposit, etc., Co., 1897, 183 Pa. St. 271; 38 Atl. 601. And see Graeme v. Cullen, 1873, 23 Gratt. (Va.) 266, 296.
1 Hylton v. Brown, 1808, 2 Wash. (U. S. C. C.) 165; Fed. Cas., No. 6983; Kerr v. Nicholas, 1889, 88 Ala. 346; 6 So. 698; Jackson v. Loomis, 1825, 4 Cow. (N. Y.) 168; 15 Am. Dec. 347; Ege v. Kille, 1877, 84 Pa. St. 333, 340. And see Searl v. School Dist., 1890, 133 U. S. 553 ; 10 S. Ct. 374; Huse v. Den, 1890, 85 Cal. 390, 401; 24 Pac. 790 ; 20 Am. St. Rep. 232; Doe d. Scott v. Alexander, 1861, 2 Houst. (Del.) 321, (but occupant cannot recover for improvements made by his landlord) ; Wakefield v. Van Tassell, 1905, 218 I11. 572; 75 N. E. 1058; Parsons v. Moses, 1864, 16 la. 440, 445; Tongue v. Nutwell, 1869, 31 Md. 302, 309; Carter v. Brown, 1892, 35 Neb. 670, 675; 53 N. W. 580; Patterson v. Reardon, 1850, 7 U. C. Q. B. 326; Effinger v. Hall, 1885, 81 Va. 94, 101.
In Jackson v. Loomis, supra, the court said (p. 172): "There is certainly no reason, in general, why the owner of land should be compelled to pay for improvements which he neither directed nor desired, as a condition on which he is to gain possession of his property. But when an occupant has taken possession under a bona fide purchase, and made permanent improvements, it is very hard for him to lose both land and improvements. If the plaintiff is not content with acquiring possession of his property in an improved condition, after he has neglected to assert his title for a number of years, it is certainly equitable that the defendant should be allowed the value of his improvements, made in good faith, to the extent of the rents and profits claimed.'!
2 See cases cited note 1, page 299.
Griswold v. Bragg, 1880, 48 Fed. 519; 18 Blatch. (U. S. C. C.) 202; Shipman, J. (p. 520): "The statute practically impresses upon the land of a successful plaintiff in ejectment a lien for the excess, above the amount due for use and occupation, of the present value of the improvements which have been placed on the land, before the commencement of the action, by a defendant or his ancestors or grantors, in good faith, and in the belief that he or they had an absolute title to the land in question, and forbids occupancy by the plaintiff until the lien is paid. There is a natural equity which rebels at the idea that a bona fide occupant and reputed owner of land in a newly settled country, where unimproved land is of small value, or where skill in conveyancing has not been attained, or where surveys have been uncertain or inaccurate, should lose the benefit of the labor and money which he had expended in the erroneous belief that his title was absolute and perfect. While it is true that improvements and permanent buildings upon land belong to the owner, yet, in a comparatively newly organized state, where titles are necessarily more uncertain than they are in England, there is an instinctive conviction that justice requires that the possessor under a defective title should have recompense for the improvements which have been made in good faith upon the land of another. The maxim, often repeated in the decisions upon this subject, nemo debet locupletari ex alterius incommodo, tersely expresses the antagonism against the enrichment of one out of the honest mistake, and to the ruin, of another. It is obvious that this statutory equity is not without occasional hardships. The true owner may be forced to sell his land against his will, and may sometimes be placed too much in the power of capital, but a carefully regulated and guarded statute should ordinarily be the means of doing exact justice to the owner."
1 See the following cases in which statutes are referred to : Southern Cotton Oil Co. v. Henshaw, 1890, 89 Ala. 448; 7 So. 760; McDonald v. Rankin, 1909, 92 Ark. 173; 122 S. W. 88; O'Brien v. Flint, 1902, 74 Conn. 502; 51 Atl. 547; Hicks v. Webb, 1906, 127 Ga. 170; 56 S. E. 307 ; Wakefield v. Van Tassell, 1905, 218 111. 572; 75 N. E. 1058; Parsons v. Moses, 1864, 16 la. 440; Pass v. McLendon, 1885, 62 Miss. 580; Bellows v. McCartee, 1846, 20 N. H. 515; Neeld v. Cunningham, 1907, 216 Pa. St. 523, 527; 65 Atl. 1095; Salinas v. Aultman & Co., 1895, 45 S. C. 283; 22 S. E. 889; Parker v. Vinson, 1899,11 S. D. 381; 77 N. W. 1023; Rutland R. Co. v. Chaffee, 1900, 72 Vt. 404; 48 Atl. 700; Johnson v. Ingram, 1911, 63 Wash. 554; 115 Pac. 1073; Zwietusch v. Wat-kins, 1884, 61 Wis. 615; 21 N. W. 821.
Their constitutionality has been often challenged, but in general has been upheld.1